PETITION FOR REVIEW (PENNSYLVANIA HUMAN RELATIONS COMMISSION).
Joseph S. Rengert, Chief Counsel, Harrisburg, for petitioner.
Michael Hardiman, Asst. Counsel, with him, Patricia A. Miles, Asst. Chief Counsel, Philadelphia, and Elisabeth S. Shuster, Chief Counsel, Harrisburg, for respondent.
Doyle and Palladino, JJ., and Narick, Senior Judge.
[ 127 Pa. Commw. Page 438]
Before us is an appeal by the Pennsylvania State Police (Petitioner) from a second remand*fn1 to the Pennsylvania Human Relations Commission (Commission) after which the Commission reaffirmed its prior order in which it had determined that Petitioner discriminated against Almando Carrasquillo (Complainant) because of his Puerto Rican ancestry and ordered his reinstatement, with back pay, as a state trooper.
In Pennsylvania State Police v. Pennsylvania Human Relations Commission, 116 Pa. Commonwealth Ct. 89, 542 A.2d 595 (1988) (PSP II), we remanded this case to the Commission to reconsider its order in light of the Pennsylvania Supreme Court's discussion of the applicable burdens
[ 127 Pa. Commw. Page 439]
of proof in discrimination cases in Allegheny Housing v. Pennsylvania Human Relations Commission, 516 Pa. 124, 532 A.2d 315 (1987). On remand, the one remaining Hearing Commissioner revised her order to reflect compliance with the Supreme Court's guidelines and, by a vote of six to four (with one abstention), the Commission adopted the Hearing Commissioner's findings of fact and conclusions of law. Petitioner has again appealed, raising three issues for our consideration.
Petitioner contends that 1) the Commission erred as a matter of law in finding that its legitimate, non-discriminatory motives in discharging the Complainant were pretextual without a finding that the reasons advanced were fabricated; 2) that the Commission's order is not supported by substantial evidence; and 3) that the Commission's decision was procedurally improper. Because we find that the third issue is dispositive, we do not reach the substantive issues and reluctantly remand yet again.
The essence of Petitioner's argument on that issue is that the Commission's decision-making process is procedurally flawed, as evidenced by the copy of the minutes taken at the Commission's "compliance session," which preceded its June 27, 1988 meeting. At that session, the Commissioners, according to the reporter's summary,*fn2 discussed what their scope of review of the Hearing Commissioner's order should be. Commissioner Echols was of the opinion that he was to review the record to see whether there was sufficient evidence to substantiate the Hearing Commissioner's recommendation. If so, he would vote to affirm the order even though he personally might have come to a different conclusion. Although advised by counsel that "the Supreme Court order stating that all Commissioners must review the full record . . . differs from the appellate standard stated by Commissioner Echols" (Minutes of Compliance Session, June 27, 1988), Commissioner Echols "said
[ 127 Pa. Commw. Page 440]
that if [counsel] were correct, the recommendation of the Hearing Panel would be meaningless and said he still feels that the law gives a Hearing Panel the right to make recommendations on credibility issues." (Id.) Chairman McGill, on the other hand, stated that he believed that the Pennsylvania Human Relations Act (Act)*fn3 required the Commissioners to read the entire record to determine for themselves all of the issues, including credibility determinations. This difference of opinion was apparently not resolved and the Commissioners ...